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Kowalskey v. State

Court of Appeals of Indiana

July 30, 2015

Gabriel Kowalskey, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

Appeal from the Hendricks Superior Court. The Honorable Rhett M. Stuard, Judge. Cause No. 32D02-1406-FB-39, Cause No. 32D02-1409-F6-142.

ATTORNEY FOR APPELLANT: Paula M. Sauer, Danville, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.

Brown, Judge. Crone, J., and Pyle, J., concur.


Page 98

Brown, Judge.

[¶1] Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial court that he, by his conduct, waived his right to counsel. Kowalskey raises two issues which we revise and restate as whether the court erred in finding that, by his conduct, he waived or forfeited his right to counsel. We reverse and remand.

Facts and Procedural History

[¶2] On June 9, 2014, the State charged Kowalskey with possession of cocaine and possession of marijuana as class B felonies under cause number 32D02-1406-FB-39 (" Cause No. 39" ), and on that day Herb Witham was appointed as Kowalskey's pauper counsel. The State later amended the information under Cause No. 39 to add counts charging Kowalskey with carrying a handgun without a license as a class A misdemeanor, carrying a handgun without a license as a class C felony, and unlawful possession of a firearm by a serious violent felon as a class B felony. On July 23, 2014, Witham filed a motion to withdraw appearance and appoint alternate counsel " due to a conflict in regard to his continued representation of the defendant." Appellant's Appendix at 39. The same day, the court granted Witham's motion and appointed Tyler Starkey as counsel for Kowalskey.

[¶3] On September 2, 2014, the State charged Kowalskey with battery of a public safety official as a level 6 felony under cause number 32D-1409-F6-142 (" Cause No. 142" ), and the court appointed Starkey as pauper counsel for him.

[¶4] On December 2, 2014, Starkey filed a motion to withdraw appearance in Cause No. 39 and Cause No. 142 " for the reason that there has been a breakdown in the attorney-client relationship." Id. at 77, 123. On the following day, the court granted Starkey's motion and, in its order stated " Def. given 10 days to obtain counsel." Id. at 78, 124.

[¶5] On December 15, 2014, the State filed a motion for attorney status hearing in Cause Nos. 39 and 142 stating that the court had previously appointed two attorneys to represent Kowalskey, both of whom withdrew their appearances, and asking the court to inform Kowalskey of the advisements required by Gilmore v. State, 953 N.E.2d 583 (Ind.Ct.App. 2011). The following day, the court issued an order scheduling an attorney status hearing for January 6, 2015, and stating that, at the hearing, Kowalskey would be warned that if his obstreperous behavior persists the court would find that he has chosen self-representation by his own conduct and that he would be warned of the dangers and disadvantages of self-representation.

[¶6] On January 6, 2015, the court held a hearing on the State's motion. The court asked Kowalskey " do you want to go

Page 99

out for a court-appointed lawyer or . . . where are we on this," and Kowalskey stated " there's some things that I don't understand about the way the process goes here." Transcript at 7. He stated that Witham was his attorney up to his omnibus date and that that was the first time Witham visited him. The court stated that it did not matter and that what mattered was that the case kept moving along and Kowalskey's rights were protected. The following exchange then occurred:

The Court: You have . . . had two attorneys; you couldn't . . . for whatever reason couldn't work with either of those. I mean we could try one more time and appoint you a lawyer and if you want to see if you can work with somebody that's fine; I have no problem with that and we can do that or if you don't think you can work with anybody then -- then we can have you waive your right to a lawyer and you can try to represent yourself, you know, we'll have to talk about that but as we sit here right now, uh, I need to know how you want to proceed in this case.
Gabriel Kowalskey: I need a lawyer.

Id. at 8.

[¶7] After questioning Kowalskey about his finances and finding that he qualified for a court-appointed lawyer, the court appointed Eric Oliver as his counsel in Cause Nos. 39 and 142. The following exchange then occurred:

The Court: . . . . Uh, now, Mr. Kowalskey, uh, that Gilmer [sic] case . . . what it tells us is that, uh, if you keep having problems with lawyers over and over and over . . . the Court can enter just on its own that you've decided to represent yourself, okay. I can enter a motion that says by your own conduct, uh, you have decided to represent yourself. Uh, you know . . . and since you've chosen to hire court-appointed -- have court-appointed counsel today we're not going to go into that but if we get to that point, you know, they'll have to inform you of, uh, you know, the dangers of self-representation and the risks that are involved in it. The short story is, uh, you would be held to the same standard as this attorney sitting right here who's been to law school, okay.
Gabriel Kowalskey: Yeah.
The Court: And -- and so, uh, obviously that's a risk that you - you, you know, you may not want to take. So I'm going to have Mr. Oliver come see you, okay. . . .
* * * *
Gabriel Kowalskey: . . . [T]here was one more thing that I wanted to - I don't know if it's maybe I should do it but I was speaking to it with him but when I did have Tyler Starkey, my former attorney, I went to a video court for Battery, the liquid thrown on -- water thrown on the staff. I went to video court and then after that I had a visit with Tyler Starkey.
The Court: Okay.
Gabriel Kowalskey: I asked him for a fast and speedy to get this over with since I've ...

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